Elfigio Muzhazhe v Zimleaf (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/33/2023
HARARE, 16 JANUARY 2023 &
CASE NO LC/H/806/2022
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/33/2023

HARARE, 16 JANUARY  2023 &                            	CASE NO LC/H/806/2022

27 JANUARY 2023

ELFIGIO MUZHAZHE					APPLICANT

ZIMLEAF (PVT) LTD					RESPONDENT

Before the Honourable G. Musariri  Judge:

For  Applicant			Mr E. Makuyana, Unionist

For Respondent		Mr S. Sadomba, Attorney

MUSARIRI, J:

At the onset of oral argument in this Court respondent raised 2 points in limine which applicant opposed. I shall deal with the points ad seriatim.

That the application is in improper form:

Applicant applied for the reinstatement of an abandoned matter. Rule 17(1) of the Labour Court Rules  S.I.  150/17 requires that such application be made in terms of prescribed Form LC 12. Alternatively the application might take the shape of Form LC1.  However the both forms require that the application be supported by an affidavit. The application in casu takes the form of a signed statement by applicant.  Such statement falls short of the required affidavit which is a sworn statement made before a Commissioner of Oaths. Applicant sought to argue that Rule 24 sanitises the form which he adopted.  I consider that Rule 24 refers to properly supported applications.in either Form LC1 or LC12.  It does not cover applications unsupported by affidavit. I therefore conclude that the application  in casu  is defective for want of proper form.

That the application is fatally defective for failure to comply with prescribed time limits:

The proviso to Rule 46 provides for reinstatement of abandoned matters thus

“provided that the matter may be reinstated by a Judge in chambers on good cause shown upon application made	 within twenty-one days of the abandonment.”

On the 16th June 2022 the Registrar of this court wrote to applicant notifying that the matter was deemed as abandoned for failure to file heads of argument timeously.  It follows that by the 16th July 2022 the prescribed period for seeking reinstatement had lapsed. Applicant only filed the present application on the 5th September 2022. Thus the application was filed out of time.

Applicant, realising his predicament, sought to rely on Rule 32 which permits the Court to condone departures from time limits set by the Rules.  I consider that the Rule does not assist applicant. The Rule provides for condonation in matters properly brought before the Court. It does not apply to the founding documents. In casu it was necessary for applicant to first apply for condonation before seeking reinstatement.  I am fortified in this view by the case of

Sibanda v Ntini   2002(1) ZLR 264(S)

where Malaba JA (as he then was) quoted the following at  p 267A,

“If he (defaulter) does not make the application within that (prescribed) period but wants to make it after the period has expired, he must first of all make an application for the condonation of the late filing of the application.  This should be done as soon as he realises that he has not complied with the rule.”

In all the circumstances I conclude that the both points in limine were properly taken and ought to be upheld.

Whereupon it is ordered,

Respondent’s points in limine be and are hereby upheld; and

The application for reinstatement (of an abandoned matter), being fatally defective for failure to comply with time limits; is hereby struck off the roll.

G MUSARIRI

J-U-D-G-E